CSA’s Arguments on Public Review
December 10th, 2017
My last class before graduation was a semester seminar in historiography. That is, we were studying how history is written, we were learning how to sift the fact from the fiction within the text, to discern the biases of the author, and to discount these within the text so that the writing that remained was objective and could be relied upon.
Sifting fact from fiction in CSA’s writing would take two semesters.
On Friday of last week we received CSA’s affidavits for the 60-day public review injunctive hearing scheduled for Dec. 15th. Readers will recall that we have asked the Court to compel CSA to comply with the Federal 60-day public review laws in their release of the Electrical Code in 2018. The CSA isn’t keen on this, and their breach of law is pretty clear so, naturally, their affidavits are pretty unclear.
The CSA submitted two affidavits; one from Doug Morton, their VP of Government Relations, and one from David Zimmerman, their Manager of Accreditation.
The Morton affidavit is a surreal reading experience. He laments that we continue “to assert that CSA is a government body [and] that CSA has monetized the law”. Yes, and yes, but according to Morton; “none of these things are true.”
Indeed, apparently CSA is the victim. PS Knight claimed “that we are attempting to destroy his business.” How horrid. Zimmerman echoes this claim, by the way, saying; “To be clear, CSA has no interest in destroying Mr. Knight’s business.” It’s hard to know how to respond to such statements, at least without swearing.
“I see the same pattern over and over,” says Morton, “He [Gordon Knight] routinely makes allegations against us that are not true, that are based on his personal opinions and speculations but which he puts forward as facts.”
Actually, the articles on this newsfeed are the result of substantial research and the evidences that are publicly available are linked directly within each article. Even the National Post doesn’t do that much. In fact, when CSA made another claim like this in Court, we responded by submitting several hundred pages of original source documentation covering just one instance of CSA’s falsified testing of consumer products. That’s the scale of RestoreCSA research. In this context, Morton makes his allegation that our side is pushing baseless accusations. The irony is thick.
Then, says Morton; “He has created and now maintained for many years a hateful blog called restorecsa.com.”
“He has publicly accused judges of the Federal Court, such as at least Justice Manson and Chief Justice Crampton, of corruption”. Indeed, the articles are here and here. The evidentiary basis for each allegation is directly quoted and linked within each article.
One should note that the crimes referenced in these articles are crimes. Reporting a crime is not, itself, a crime. Perhaps Morton should research the difference.
“He has sent invoices to provincial representatives falsely claiming that his company owns a copyright in CSA’s Code, and demanding that they provinces pay his company millions of dollars for having referred to CSA’s Code in their laws and regulations.” Yes, we are sending invoices, the article is here, but no, there is no false claim. The Manson Ruling is not restricted to CSA’s benefit. Rather, the Ruling states that “the Crown does not own copyright in legislation,” meaning that any registered copyright, including ours, is legitimate ownership of that contributed text.
Get the idea? Justice Milt Harradence called CSA’s sort of affidavits “western flair.” In vulgar terms, this is shooting a whole lot of crap straight up in the air and “hoping like hell it lands on a gullible juror” or, in our case, a gullible judge.
Then Morton revisits a series of already debunked claims, apparently confident that the Judge in next week’s hearing won’t be familiar with their dubious credibility.
For instance, Morton claims that there was no-one “within CSA [who] was actively monitoring anything going on with Peter Knight […] during at least the period of the 1960’s to around the turn of the century.” In other words, they had no idea that we were in business, publishing guidebooks, or working with any of their staff, closely, and regularly, for forty-five years. The fact that CSA actively contributed to every PS Knight publication for decades is overlooked. Same goes for the correspondence on record during these years between the parties. See? Surreal.
Then we get to this line: “Peter Knight was advancing in age and CSA did not wish to commence a copyright lawsuit against the gentleman.”
This is actually really, really offensive. After decades of friendly relationship, they turned on him. They badgered my father, harassed him for years. They tried to sabotage his business. They fabricated legislation, trying to dupe him into publishing false information. Then they sued him personally in 2012, knowing that he had no ownership of the business by that point, no role in it -nothing, but they sued him anyway. Then they tried to force him into a series of discovery sessions, high stress depositions basically, in spite of two doctors’ letters that susceptibility to stress-related strokes made this highly inadvisable and, let’s face it, after CSA hadn’t bothered with any of this for nearly fifty years. Then, when my father was in hospital near the end of his life, they still wouldn’t let up, they were suing him in his hospital bed. And then the CSA filed more motions in Court against us on the morning of his funeral.
These are the actions CSA commenced “against the gentleman.”
Lying comes so naturally to CSA, so easily, it’s as though the habit is now reflexive.
“Ultimately,” said Morton, “Mr. Knight’s blog postings became so serious and defamatory that we were compeled [sic] to defend ourselves by way of an action for defamation in [Ontario].” Again, we research everything, we buttress our arguments, we link to every publicly available source, we quote directly (just like in this article) so that the reader can judge for themselves the basis for conclusion, etc.
According to Morton, PS Knight is the one bullying CSA. They’re the victim here. Apparently, our “ultimate goal is to pressure CSA into doing whatever he wants.” Right, that makes sense.
And CSA, we’re told, has been trying oh so hard to resolve this quickly. For nearly six years. “It is untrue that CSA has done anything to slow down any of these proceedings. We do want this action to proceed to trial as quickly as possible.” Uh-huh.
And they’re pure as the driven snow too. They’ve never traded money for influence over legislation. No. Said Morton; “This is entirely false. There are no such payments. No one pays CSA any money to sit as voting Committee Members for the Code or any of the various other standards we produce in Canada.”
So what of CSA’s admission in internal documents to “$60-$70MM” in payments for “contributions” to legislation? Well, said Morton, that “ relates to a past donation drive that we had at one time”. Never mind that CSA’s website offering these transactions called them “Memberships”. But, you know, “donation drive”, like Girl Guide cookies, $70MM dollars’ worth. Damn expensive cookies.
Then, after 99 paragraphs of creative writing, Morton gets ‘round to mentioning the subject of the affidavit; the 60-day public review law. Folks, his whole affidavit is 103 paragraphs long.
At this point the Standards Council of Canada (SCC) chimes in, by letter, included within the affidavit. A Ms Mkabi Walcott, the SCC Senior Director, Global Standards, affirmed that CSA could not possibly have violated the Federal 60-day public review law because “CSA Group has defined the process of public review for the Canadian Electrical Code”. Got that? The SCC, mandated to police the CSA, allows CSA to “define” its own compliance with law? Well, yes, apparently. Said the SCC; “From the SCC’s perspective, this is an acceptable practice.”
Next was the Zimmerman affidavit.
“CSA is a private organization,” he said. “We are not a government body. We are not an agent for any government body or any level of government. We are not a regulatory body.”
Then he revisits it. “Mr. Knight states that CSA ‘is an Agency of the Federal Government.’ This is not true. We are a private body”. To hammer it, he notes that former CSA employee “Justice Manson of the Federal Court” has affirmed this.
Next, Zimmerman goes all Morton in his repeats of already debunked CSA mythology. “Standards are generally costly to produce,” he says. He neglects to mention that CSA’s already admitted in Court to having zero costs in standards development.
Then he actually denies the existence of CSA’s “Accepted as Amended” provisions in provincial law. His argument is that the effective date of legislation may be different than the date of passage of law. Alright, but that doesn’t affect the authorship of law or its automatic passage into law upon the date of publication, and that’s the point he’s trying to disprove. His position then, is amusing, but the Accepted as Amended provisions are plain in the texts of law, in black and white, in those terms. Just denying them is just silly.
Of course, denying the Accepted as Amended provisions gives him basis to claim that “CSA does not amend electrical laws.” Because, he says, the CSA doesn’t amend the law, the Code therefore cannot be part of law, the CSA can therefore do whatever they want with the Code. As he put it; “We are a private body and we can publish whatever we wish, whenever we wish.”
In this then, “it is not CSA’s practice to provide any private third parties with full ‘advance copies of the draft Code’ prior to its publication by CSA.” Quoting Federal law however; “On the request of any interested party the [CSA] shall promptly provide, or arrange to provide, a copy of the draft standard in question.” Is that clear enough?
Then they sidestep it, instead noting that “Mr. Knight has never been singled out or blocked from accessing CSA’s public review website.” That’s not the issue; the CSA hasn’t put the Code on that website for public review. They did however, block us from the Communities of Interest website, and we submitted a screen capture of the kick-out window into evidence.
Zimmerman then appeals to the credibility of the SCC audit process. You recall the SCC, right? That’s the intermediary between CSA and the Minister of Industry, currently headed by John Walters. He’s also the former President of Standards at CSA. It’s a tight family.
“In the past 10 years alone, CSA has only ever been issued one minor ‘notices of non-compliance’ by SCC in the course of these audits.” That’s right. We chronicled this here. It seems that SCC regulations fully apply to CSA unless, of course, they’re inconvenient. Then the rules are waived. And if the rules are waived, then there’s no breach to record. And that’s how CSA gets a clean record.
Alright, now we get to the big whopper. Ready?
“The Code is a compilation of numerous standards dealing with various aspects of electrical safety. For convenience, these individual standards have been organized by topic and compiled into a single comprehensive publication (the Code). Each new edition of the Code that is released by CSA is a compilation of those standards, many of which are amended in the course of the code cycle.”
Wow. Where to begin.
First, ponder why CSA says this, and why now. We’ve compelled them into Court with evidence of noncompliance with public review laws. The laws require full public review of each draft standard. The CSA however, is only posting small excerpts of the Code. But, if each paragraph of the Code were it’s own stand-alone standard, then they’d be in full compliance. So now the Code isn’t a standard passed into law; it’s a collection of “individual standards” all “compiled” into a single publication.
By CSA logic, a Ruling of the Court is really dozens of Rulings, each line therein being a stand-alone Ruling, and all of these one-line Rulings grammatically organized and compiled into a single comprehensive document, commonly called a “Ruling.”
What rubbish! Governments record the Code as a single standard when passing electrical laws. The CSA itself lists the Code as a single standard. It has a single ISBN and just one standard identifier number. The CSA has already argued in this very litigation that each edition of the Code is a unique document. They have never, ever claimed that the Code is somehow a gigantic collection of disparate standards all collated together for convenience of indexing.
Anyway, based upon this reasoning, and I employ the term guardedly, Zimmerman opines that “during the code cycle […] close to 400 proposed amendments […] were submitted, all of which were posted for public review as described above.” Four hundred? We know from previous research that only 2% of Code text is new in each edition. Assuming the 400 figure, that means the Code contains 20,000 standards. Yet CSA has claimed in Court that they only produce 2,000 standards, the Code being but one of these. Their latest testimony therefore, is that they publish about 1,000% more standards, just within the Code, than they’ve claimed exist entirely, across all of their publications.
Even if you just count paragraphs as standards within the Code you’d still end up with over 6,720 standards. That’s over 4,000 standards more than they claim to have published.
It’s one of the most asinine arguments we’ve yet heard from CSA, and we’ve surely heard our share, but their motivations for the claim are clear; If each line of text is its own standard, then all they have to do to comply is post the individual lines of amendment.
But, he says, if the CSA were compelled to comply with the public review law as written, well, it “would be a great disservice to the work of CSA’s volunteer members, committees, the electrical industry, and the Canadian public.” You see, the CSA is a really swell Agency, they’re dedicated to the public service. All of the millions “donated” to CSA in trade for copies of the law are put toward development of “health and safety standards.” If CSA can’t violate the public review law, then “these important activities may be seriously and negatively impacted.”
Remember folks, all we’re talking about here is a 60-day delay, a mere two-months for public review.
Yet; “Any delay to the release of the 2018 Code has the potential to negatively impact the safety of Canadians, as the 2018 Code contains many important amendments that are aimed to improve electrical safety”.
But by their own admission -amazingly, they’re contradicting themselves in their own affidavit- the Provinces of Ontario and British Columbia delayed passage of the 2015 Code by 10 months and 12 months respectively.
It gets better. Quebec didn’t pass the 2015 Code into law at all. In fact, they didn’t pass the 2012 Code either. Right now, the Province of Quebec is still on the 2009 Code, which they passed in 2010. So Quebec struggled by for nearly a decade without passing a new Code into law, and all without imperilling their citizens, yet CSA claims that a mere two months’ delay could “negatively impact the safety of Canadians.”
Alright, let’s bring all this together. The Dec. 15th hearing is only two-hours long. The CSA has submitted arguments, plus two affidavits totalling 55 pages, plus exhibits, running to a total of about 300 pages (I say “about,” I’m not about to count them for specificity). Our side has one submission, the original motion, my affidavit and evidence papers, giving a total of about 100 pages. The CSA has already advised of the possibility of “supplemental” documents filed later next week. The Judge will be reviewing ~400 pages for a two-hour hearing.
What do you think? Is the Judge going to make a study of it? Is the Judge going to actually check the CSA’s hundreds of accusatory paragraphs? Or is the Judge going to assume that some of CSA’s “western flair” must be accurate?
That’s the hope at CSA of course, and it’s our worry this week. Well, one of them. We’ve written about our experiences with the Court, and how it doesn’t really matter much if you’re right or wrong, a rogue or a really nice guy. What matters is money and power; and we’ve got little of either, and CSA’s got loads of both.
Back in my university days, a seminal moment for me in my historiography studies involved an especially boring book by two especially renowned historians. We were to pick the book apart, find the biases, root out the rubbish, so that what remained was objective and reliable.
Reaction in the class was really interesting. I found the book boring, uninspiring, and brimmed with bromides to the loss of substance and credibility. A couple of my classmates however, defended it up and down. Yes, they saw the same deficiencies, but they were awed by the renown of the writers, they gave deference to the powerful in downplaying the mistakes of the mighty. They were what used to be called “respecters of persons.”
The CSA is a powerful, and powerfully crooked arm of the Federal Government. It is very tempting to give deference to the powerful in downplaying violations of law. But the law is to be no respecter of persons. It is justice to treat all with equal respect before the law.
The law is clear, that CSA is in breach of law is equally clear. We’ll soon learn which one rules the other.